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CUMMING & ASSOCIATES, APLC
William R. Cumming (State Bar No. 200966)
cumming@cummingandassociateslaw.com
3080 Bristol Street, Sixth Floor, Suite 630
Costa Mesa, CA 92626
Telephone: (714) 432-6494
Facsimile: (714) 202-3162
LAW OFFICES OF NANCY M. BATTEL
Nancy M. Battel (State Bar No. 126548)
nancy@battelaw.com
1101 Westwood Drive, Suite B
San Jose, CA 95125
Telephone: 408-723-2946
Facsimile: 408-266-7238
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Attorneys for Defendants Worldwide Ground Transportation Solutions, Inc. and James Brown
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SUPERIOR COURT OF THE STATE OF CALIFORNIA.
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FOR THE COUNTY OF SANTA CLARA
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PHILIP RESTIVO, Case No. 17CV308469
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Plaintiff, Judge Mary E. Arand
17 Department 09
Vv.
18 WORLDWIDE GROUND
WORLDWIDE GROUND TRANSPORTATION SOLUTIONS,
19 TRANSPORTATION SOLUTIONS, INC.; INC.’S TRIAL BRIEF
JAMES BROWN, an individual; and DOES 1
20 through 5, inclusive, MSC Date: March 6, 2019
Time: 8:45 a.m.
21 Defendants. Dept.: 09
Judge: Mary E. Arand
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Action Filed: April 12, 2017
23 Trial Date: March 11, 2019
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TRIAL BRIEF
TABLE OF CONTENTS
Introduction
The Relevant Facts
A The Events Leading Up to Worldwide Purchasing Le Grande Affaire
B Restivo Had A Discount Coupon to Use Limousine Services and
Worldwide Honored His Requests to Ensure the Noncompete Stayed in
Place.
A Disagreement Arose Between Worldwide and Restivo Regarding the
Language in Paragraph 4 of the Offer and Agreement to Buy, and Brown
10 Decided to Try and Resolve the Dispute Through Mediation..
11 Worldwide and Restivo Reached an Agreement at The Mediation to
12 Amend the Language in The Addendum to the Offer & Buy Agreement to
13 Cap the Amount of Discount Limousine Services Worldwide Was
14 Obligated to Provide to Restivo
15 After the Mediation, Restivo Started to Complain that Worldwide Was
16 Not Honoring All of His Requests for Vehicles, and He Also Threatened
17 to Sue Both Worldwide and Brown for Breaching the Mediated
18 Settlement Agreement.
19 The Complaint Alleges Brown, In His Individual Capacity, And
20 Worldwide Breached the Terms of The Mediated Settlement Agreement
21 Dated September 17, 2015...
22 The Court’s Ruling On The Motion For Summary Judgment
23 A The Court Dismissed Brown from the Case.
24 B The Court Denied the Motion as To Worldwide.
25 Cc The Court’s Ruling Precluded Restivo From Pursuing A Declaratory
26 Relief Cause of Action, Which Includes Restivo Not Being Able to
27 Dispute the Enforceability of the Covenant Not to Compete 10
28 The Court was Critical of Restivo’s Damage Theory... 10
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TRIAL BRIEF
Worldwide Filed Motions in Limine That Should Eliminate or Substantially
Reduce Restivo’s Damage Claims 10
The Defendants Served A Section 998 Offer For $25,000 And It Was Not
Accepted, 10
Conclusion. 11
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TRIAL BRIEF
Worldwide Ground Transportation Solutions, Inc. (“Worldwide”) submits the following
trial brief.
1 Introduction
This lawsuit arises from a merger and acquisition transaction involving two limousines
companies.
Plaintiff Philip Restivo (“Restivo”) filed a complaint for breach of contract against James
Brown (“Brown”) and Worldwide. The defendants filed a motion for summary judgment to
dismiss Brown because he was not a party to the contract at issue, and Restivo was not able to
establish he suffered damages. The court granted the motion and dismissed Brown, but denied the
10 motion as to Worldwide because the motion did not “conclusively negate” the damage element.
11 The court’s order regarding the motion for summary judgment made certain findings that are
12 binding at trial and present challenges Restivo likely cannot overcome in his effort to recover
13 damages.
14 2 The Relevant Facts
15 A The Events Leading Up to Worldwide Purchasing Le Grande Affair:
16 Brown has been in the transportation industry most of his professional life and knows the
17 industry well. In 2005, Brown started Worldwide, and today it is one of the larger transportation
18 companies in the Santa Clara area and offers a variety of transportation services. Its fleet of
19 vehicles includes luxury sedans and town cars, stretch limousines, and large charter buses.
20 Worldwide provides transportation services to the general public, commercial clients and
21 businesses, and offers vehicles for special events such as proms, wedding parties, and concerts. Its
22 diverse mix of vehicles and clients gives it the ability to thrive in a highly competitive market.
23 Restivo has known Brown for over 30 years. Restivo has also been in the transportation
24 industry most of his professional life and owned and operated transportation companies that were
25 similar to Worldwide.
26 In 2013, Restivo owned and operated Le Grande Affaire. The company had approximately
27 60 employees, 40 vehicles, and was grossing approximately $2.5 million per year.
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TRIAL BRIEF
Restivo wanted to cash out and sell Le Grande Affaire. He contacted Brown and asked if
he wanted to buy Le Grande Affaire. Brown was not interested. Restivo approached Brown a few
more times, and Brown warmed up to the idea. Eventually, the two agreed to terms and Brown
decided to buy Le Grande Affaire. The two retained a business broker and the transaction
involved Worldwide purchasing the assets of Le Grande Affaire.
After Le Grande Affaire was paid in full, two primary obligations remained: (1) Restivo’s
promise not to compete with Worldwide, and (2) Worldwide’s promise to provide discount
limousine services to Restivo. The Covenant not to Compete was conditional and remained in
place only if: (1) Worldwide remained current on its payments, which it did, and (2) Worldwide
10 adhered “to the terms set forth in paragraph 4.0 of the Addendum to Offer and Agreement to Buy,
i dated 5/13/14,” which referenced providing discount limousine services to Restivo. (Offer and
12 Agreement to Buy, Ex. 1,41.) In other words, if Worldwide stopped providing discount
13 limousine services, the non-compete agreement could be terminated.
14 B. Restivo Had A Discount Coupon to Use Limousine Services and Worldwide
15 Honored His Requests to Ensure the Noncompete Stayed in Plac:
16 It would likely be helpful to explain how the discount limousine services worked.
17 The cost for a typical client to rent a vehicle from Worldwide has three components: (1) the hourly
18 rate for the vehicle, (2) the hourly rate for the driver of the vehicle, and (3) fuel for the vehicle.
19 The discounted hourly rate means Restivo only has to pay for the driver and fuel (i.e., costs two
20 and three), but not the standard hourly rate for the vehicle (i.e., cost one). In essence, Restivo has
21 a “discount coupon” that can be used when Restivo decides to use and pay Worldwide money for
22 renting a limousine. The discount coupon is no different than other discount coupons offered
23 through Kohl’s, restaurants, etc.
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TRIAL BRIEF
Cc A Disagreement Arose Between Worldwide and Restivo Regarding the
Language in Paragraph 4 of the Offer and Agreement to Buy, and Brow!
Decided to Try and Resolve the Dispute Through Mediation
Approximately one year after Worldwide purchased Le Grande Affair, Brown
recommended the parties participate in mediation. By this time, a dispute arose regarding the
meaning of the certain phrases in paragraph 4 of the Offer and Agreement to Buy, which related to
Worldwide providing discount limousine services. Worldwide believed it was important to honor
its contractual obligation to provide discount limousine services because it was the right thing to
do. Also, if Worldwide continued to provide discount limousine services, the non-compete
10 agreement would stay in place until June 10, 2021. Keeping Restivo out of the transportation
1 industry would mean one less competitor Worldwide had to deal with.
12 Worldwide and Restivo had different interpretations of the language in Paragraph 4 of the
13 Addendum to Offer & Agreement to Buy. The addendum states:
14 “4, Discount Limousine Service: For the duration of the Covenant Not to
15 Compete, Phillip Restivo may use vehicles of the Buyer for a price equal to the cost
16 of the chauffeur and fuel subject to reasonable amount of use as agreed between
17 Buyer and Mr. Restivo, to service Mr. Restivo’s personal use, friends, trades and
18 family useage.”
19 (Addendum to Offer & Agreement to Buy, Ex. 1, § 4) (emphasis added.)
20 Restivo testified at his deposition on October 4, 2018, regarding his understanding of the
21 relevant terms above. As for the definition of trades, Restivo defined it as being able to use
22 discount limousine services to pay off existing debts he owed before the agreement was signed,
23 and trades in the future after the agreement was signed. Brown had a narrower interpretation and
24 believed that Restivo should not include the use the limousines for any of future trades, but just to
25 clean up my past trades before the May 2014 agreement was signed.
26 The definition of trade became a sore topic because Restivo had repeatedly tried to profit
27 from trading limousine services and that was not part of the agreement.
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TRIAL BRIEF
The definition of “reasonable amount of use” also became a sore topic because Restivo was
using vehicles more than anticipated. For example, between June 16, 2014, and January 3, 2017,
Worldwide provided 83 different trips for Restivo, and the “discount” was approximately $40,000.
Because of the growing frustration between Worldwide and Restivo, Brown recommended the
parties ask a neutral third party for assistance and recommended Carlos Alarcon (“Alarcon”) as a
mediator.
D. Worldwide and Restivo Reached an Agreement at The Mediation to Amend
the Language in The Addendum to the Offer & Buy Agreement to Cap the
9 Amount of Discount Limousine Services Worldwide Was Obligated to Provide
10 to Restivo
il On September 17, 2015, the parties met with Alarcon and reached an agreement. The
12 parties agreed: (1) trades only related to debts that existed before the agreement was signed in May
13 2014, and (2) capped Restivo’s “discounted use” of the vehicles to $5,000 per month and the
14 discount amount went back to zero every four months.
15 The relevant language of the Mediated Settlement Agreement is the following:
16 “James Brown and Phil Restivo agree to accept and amend the Offer and Buy
17 Agreement dated 5/8/14 in these skeletal terms to further amend ‘Discount
18 Limousine Service’ clause and completed no later than 9/18/15 with thes
19 terms:”
20 (Mediated Settlement Agreement, ] 2, Ex. 2 (emphasis added).)
21 The amended terms to paragraph 4 of the Offer and Buy Agreement were as follows:
22 . “Vehicle trade use is good for any day or any time with the exception of Saturdays
23 when 8 passenger or smaller is okay but anything over 8 passenger must be booked
24 within 24 hours or less notification. 2
25 “The value of trade will be no more than $5,000 per month to include all classes of
26 usage. The $5,000 is accumulated and carried over monthly but disregarded every
27 four months, no more than $60,000 of value per year.”
28 || (Mediated Settlement Agreement, {| 2, Ex. 2.)
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TRIAL BRIEF
Alarcon agreed to prepare more formal agreement and send it to Brown and Restivo for
review. Brown did not sign the document because he was not comfortable with the language.
E. After the Mediation, Restivo Started to Complain that Worldwide Was Not
Honoring All of His Requests for Vehicles, and He Also Threatened to Sue
Both Worldwide and Brown for Breaching the Mediated Settlement
Agreement
Before the mediation, there was no dispute as to whether Worldwide was providing enough
discount limousine services or failing to honor requests made by Restivo. After the mediation,
Restivo raised these arguments, and that is when the relationship between Worldwide and Restivo
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began to deteriorate.
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Worldwide continued providing Restivo discounted limousine services under the
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agreement. In fact, between September 17, 2015, and when Restivo stopped requesting vehicles,
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Worldwide provided vehicles on 49 separate occasions, which represents 49% of all the times
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Worldwide provided vehicles to date.
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Restivo was not satisfied. He complained that Worldwide was not honoring all of his
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requests for vehicles and that Worldwide’s excuses of a driver not being available or no vehicle
17 being available were a breach of the agreement.
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Eventually, Restivo hired an attorney, Michael Ackerman, and threatened to file a lawsuit
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against both Brown and Worldwide. Mr. Ackerman forwarded a proposed Release of Claims
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demanding Restivo be paid $90,000 and Worldwide’s release of Restivo’s performance obligations
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under the non-compete agreement. Brown was told that signing the Release of Claims would avoid
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a lawsuit against both Worldwide and Brown in his individual capacity. Restivo’s demands and
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the threat of litigation through his attorney was a high-pressure and bad faith litigation tactic to get
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Restivo what he wanted. Both Brown and Worldwide refused to sign the Release of Claims and
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Restivo filed the pending action.
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TRIAL BRIEF
F. The Complaint Alleges Brown, In His Individual Capacity, And Worldwide
Breached the Terms of The Mediated Settlement Agreement Dated Septembe:
17, 2015
On April 12, 2017, Restivo filed a three-page complaint (not including exhibits) alleging
that both Worldwide and Brown, in his individual capacity, breached the “mediated settlement
agreement by refusing and failing to provide discount limousine services as promised under the
original addendum to Offer and Agreement to Buy and the mediated settlement agreement.”
(Complaint, ff 7, 8, Ex. 3.)
In his prayer, Restivo requests (1) damages in the amount of $5,000.00 per month
10 commencing September 17, 2015, and (2) a declaration from the Court that the covenant not to
11 compete is terminated and of no further force and effect. (Complaint, Prayer, § 1, Ex. 3 (emphasis
12 added) [“For damages in the sum of $5,000.00 per month commencing September 17, 2015 and
13 continuing through the date of trial and for future damages in the sum of $5,000.00 per month from
14 and after the date of trial through June 15, 2021;”]; {2 [“For a declaration from the Court that the
15 covenant not to compete is now terminated and of no further force and effect;”].)
16 3. The Court’s Ruling on The Motion for Summary Judgment
17 The defendants filed a motion for summary judgment arguing James Brown was not a party
18 to the Mediated Settlement Agreement, and Restivo could not establish he suffered damages
19 because after the complaint was filed on April 12, 2017, he had not requested discounted limousine
20 services.
21 A The Court Dismissed Brown from the Case
22 The court found Brown was not a party to the Mediated Settlement Agreement that serves
23 as the basis for Restivo’s breach of contract cause of action. Therefore, Brown is no longer a party
24 to the case. (MSJ Ruling, 7:18-19, Ex. 4.)
25 B The Court Denied the Motion as To Worldwide
26 The motion for summary judgment argued Restivo could not establish the “damage”
27 element of the breach of contract cause of action. The court denied the motion because
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TRIAL BRIEF
“Transportation Solutions does not present evidence conclusively negating the element of
damages.” (MSJ Ruling, 6:21-22, Ex. 4.)
Cc. The Court’s Ruling Precluded Restivo From Pursuing A Declaratory Relief
Cause of Action, Which Includes Restivo Not Being Able to Dispute the
Enforceability of the Covenant Not to Compete
On page two, footnote one, of the MSJ Ruling the court explained why Restivo cannot
pursue a cause of action for declaratory relief. This ruling is significant because Restivo intended
to request the court to determine whether the non-compete agreement was an enforceable
agreement.
10 D. The Court was Critical of Restivo’s Damage Theory
11 The amount of damages Restivo seeks to recover in the case and the theory for recovering
12 damages have no merit in fact or law. The MSJ Ruling seemingly agrees by stating: “Contrary to
13 what Restivo alleges, he is not necessarily entitled to damages in the amount of the maximum
14 value of services he conceivably could have requested each month, namely $5,000 per month.”
15 (MSJ Ruling, 6:2-4, Exhibit 4.)
16 4 Worldwide Filed Motions in Limine That Should Eliminate or Substantially Reduce
17 Restiyo’s Damage Claim:
18 Worldwide filed motions in limine cite to Judge Arand’s ruling on the motion for summary
19 judgment in which she ruled Restivo had not suffered damages for breach of contract between the
20 time the complaint was filed on April 12, 2017 to Restivo’s deposition on October 4, 2018,
21 because he had not requested limousine services during this time. Restivo has not requested
22 limousine services after the deposition, so Judge Arand’s ruling should apply to the present.
23 5 The Defendants Served A Section 998 Offer For $25,000 And It Was Not Accepted
24 On March 25, 2018, the defendants served a Section 998 Offer that was not accepted.
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TRIAL BRIEF
1]/6. Conclusion
Worldwide will request the jury rule in its favor.
Dated: March 10, 2019 CUMMING & ASSOCIATES, APLC
By:
William R. Cumming
Attorneys for Defendants
Worldwide Ground Transportation Solutions, Inc. and
James Brown
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TRIAL BRIEF
EXHIBIT 1
ps
sf
Pig RTH OR onhere Mewadalsieans
Busi “sitont
Addendum to Offer &Agreement to Buy
Poe terse 2 spay nd eau een! beh
Business Le Grande Affaire Limousine Senvice
Seller Restivo Enterprises Inc.
Buyer. Worldwide Ground Transportation Solutions, Inc,
Broker for Seller None
Broker for Buyer None
Date of Offer and
Agreement to Buy 5/8/14
Date of this Addendum 5/13/14
:
ng ape ep tte
neat With fégard to the above reference: ‘st Purchase: Agreemen tthe Selleranc Eo te Fe aeeeenePe
Buyer further agree:
accounts receivable,
4. Excluded Assets: All equipment, fixtur eS,inventory,
ovements and
transferrable licenses, franchises, lease tights and impr
vehicles.
Exhibit “A”
2 ssets Included in Purchas:Se: Buyer and Seller to prepare
lud in
ed the sale,
which shall list all assets and intellectual prope! rty inc
s.
within 48 hours after signing of t his Agreement by both partie
3. Consultin reement: Phillip Reslvo shall provide consulting services
places as agreed
to Buyer for 18 months after C losing at such times and.
Mr. Resti vo consulting
between Buyer and Mr. Restivo. Buyer shall pay aid as-follow:
the total. amount:of-$200; 000-p
seman monronen asoxcem fees asa 409-oontractorty wire tran: sfer through escr ow at Closing,
a. $100,000 paid in cash by
and
encing on July 15,
b. $5,868.50 paid on the 1 5M of each month comm
hs regardless of the
* 2044, and continuing fo the following 17 mont
hours of consulting actually provided.
4, Discount Limousine Service: For the duration of
the Covenant Not to”
Buyer for a price equal
Compete, Phillip Restivo may use vehicles of the
nable amount of use
to the cost of the chauffeur an d fuel subject to reaso Mr. Restivo's
ce
as agreed between Buyer and Mr. Restivo, to servi
pérsonal use, friends, trades and famlly useage. sateen:
“itiuttedav ewe SynSdotomen De Josttsy At Closin
g Seller-shall dellveite:-BuyenalLopens iit
customers for those
customer orders and all deposi its received from
orders. Seller shall pay customer deposits to escrow at Closing., Buyer
a daitiqnapurchase Py
shall:pay Seller 15% of the total of the orders as DEPOSITION
through escrow at Closing. ee Ls
o- 4
Pag pe POT Px:/]
Buyeb initials
ZS
000004
Le Grande Affaire ate aay este ante aS
riper fearBG e tat
ease 261 Sidd:
Page 2 of 2
Seller is relyi ing on Buyer's commitment to
6. Non-Re fundable Depo1p! sit: .
to begin closing the,
complete the transaction ani d will take acti ions
Business as of opening of esci row that may
caus e lireparable damage te
vent fo.enterinto.this. Ag en a ok seat bang
say
‘af arid Agreementot Buy, ait graph
agrees that the In ial Se
escrow instructions have been
2.a,) shall become non-refundable onc e e this Ag! reement and
signed by Buyer & Seller, Buyer may terminat
Material Adverse Change or .
receive his deposit back if buyer discovers a
fraud of the Seller prior to Closing
r has examined all of the
Buyer’s Due Diligence: As of thi is date Buye
ness that he requires and
documents and information abou! t the Busi
tory and walves any
hereby approves that information as satisfac
contingence for due diligence.
Broker: - Greg Carpenter, Broker, has only acte
d as a scivenerandhas:
ve
arty.in th trans:
Rate ot che NoLIePEEs ene Pevienscrree
:
same.
- All other terms and conditions remain the
Worldwide Ground
Seller: Restivo Enterprises Inc. Buye:
Transportatior Solutions /
7)
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Date By pmes Bro Wn; President Bats
By hillip Restiv ‘0, Presider
PREETI TE AER ae SSB t's
earings Pe ad SARL BThea DB asada Tea
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Page
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000005
EXHIBIT 2
Mediated Settlement Agreement
Party: James Brown
V.
Party: Phil Restivo
This case having come on this date for a mediation conference and the parties
and counsel having conferred with the mediator, it is hereby stipulated that
pursuant to the signatures herein below, that this matter Is deemed settled
pursuant to the following terms and conditions:
1,) James Brown shalll pay to the plaintiff the sum of §. 2 in accordance
with the below stated terms as payment in full of all of its claims arising from the
allegations described in the complaint. Payment terms:
1a,) Phil Restivo shall pay to the defendant the sum of eo in
accordance with the below stated terms as payment in full of all of its claims
arising from the allegations described in the complaint. Payment terms:
2.) James Brown and Phil Restivo agree to accept and.a1 id the: Off ind Buy,
ment
ee dated:5/8/14 in these skeletal _terms.to, furthel
ui USI louse and completed.no! later than’09/18/15 with thése |)
éhicle trade use Is good for any day or any time with.the exception of
(
Saturdays when 8 passenger or smaller is okay but anything over 8 passenger
must be booked within 24 hours or less notification”
The value of trade will be no more than $5,000 per month to include all classes of
usage. The $5,000 is accumulated and caitied over monthly but disregarded
every four months, no more than $60,000 of value per yéar.
The ve amendment has been proposed and accepted by both parties and
consideration is embedded.as a result
This amendment will be added as an addendum.to overall Offer and Buy
contract where the version will be generated, after consultation by either or both
attorneys for either party, depending-on the terms of the agreement with the
knowledge that he/she or if will be barred from proceeding against the
defendant in the future regardless of what might happen and agrees that after
or if necessary, payment is made in full, to dismiss its Complaint with prejudice.
Defendant(s) agree to dismiss any cross-complaints. Each party shall bear their
own costs and attorneys’ fees.
DEPOSITION
EXHIBIT
~4-}8
2a.) The defendant agrees to accept said sum, or no sum, depending on the
terms of the agreement with the knowledge that he/she or if will be barred from
proceeding agairist the plaintiff in the future regardless of what might happen
and agrees that after payment is made in full, fo dismiss its Complaint with
prejudice. plaintiff agrees to dismiss any cross-complaints. Each party shall bear
their own costs and attorneys’ feés.
3.) The parties agree that this settlement is intended tobe binding and .
enforceable pursuant to §§ 1123 et seq. of the California Evidence Code without
the execution of any further documents. Nonetheless, it ls agreed that Plaintift
shall draft a mutual release and all parties agree to sign so long as the Release
includes the skeletal terms set forth in this Stipulation.
4.) The parties agree that the release shall include a waiver of all unknown
claims, as set forth in California Civil Code § 1542, which provides that,
“A general release does not extend to claims which the creditor does not know
or suspect to exist In his or her favor at the fime of executing fhe release, which if
known by hin or her must have materlally affected his or her settlement with the
debtor.”
§.) Other provisions, i.e “confidentiality” (continued on back or attached sheets)
If necessary):
DATED: 09/17/15
Party: James Brown
Party: Phil Restivo
Neutral: Carlos J. Alarcon
CCP § 464.6 If parties to pending litigation stipulate, in awriting signed by both
parties outside the presence of the court, for settlement of the case, or part
thereof, the court, upon motion, may enter judgment pursuant to the terms of
the agreement.
Initials Plaintiff.
InitialsDefendant®)
EXHIBIT 3
SUMMUNS SUM-100
(CITACION JUDICIAL) (slo FARA 30 DE Ch corre Ga,
NOTICE TO DEFENDANT: WORLDWIDE GROUND
(AVISO AL DEMANDADO): SOLUTIONS, INC.;
TRANSPORTATION
JAMES BROWN, an iL r
Sew G Ҥ
individual; and DOES 1 through 5, inclusive.
77 APRI2 P4271
YOU ARE BEING SUED BY PLAINTIFF: PHILIP RESTIVO
rl if
eo
DEPUTY
(LO ESTA DEMANDANDO EL DEMANDANTE):
NoTicE! You have been sued. The court may decide against you without your being heard unless you respond within 30 days. Read the information
You have 30 CALENDAR DAYS after this summons and legal papers are served on you to fila a written response at this court aiid have acopy
‘served on the plaintiff. A letter or phone call will not protect you. Your written response must be in proper legal form if you want the court to hear your
case. There may be a court form that you can use for your response. You can find these court forms and more information at the California Courts
Online Self-Help Center (www.courtinfo.ca.gov/setthelp), your county law library, or the courthouse nearest you. If you cannot pay the filing fee, ask
the court clerk for a fee waiver form. If you do not file your response on time, you may lose the case by default, and your wages, money, and property’
may be taken without further warming from the court.
There are other legal requirements. You may y want to call an attorney right away. If you do not know an attorney, you may want to call an attomey
referral service. If you cannot afford an attome' /, you may be eligible for free legal services from a nonprofit legal services pI ram. You can locate
these nonprofit groups at the Califomia Legal Services Web site
(www.courtinfo.ca.gov/sel
Jawhelpealifomia.org), the Call for
iia Courts Online Self-Help Center
}), or by contacting your local court or county bar association. NOTE: The court has. a ‘statutory lien for waived fees and
costs on any settlement or arbitration award of $10,000 or more in a clvil case. The court's lien must be paid before the court will dismiss the case.
JAVISO! Lo han demandado. Sino responde dentro de 30 dfas, la corte puede decidir en su contra sin escuchar su version. Lea la informacion a
continuacién
Tiene 30 DIAS DE CALENDARIO de:spués de que le entreguen esta citacién y papeles legales para presentar una respuesta por escrito enesta
corte y hacer que se entregue unacopla al demandante. Una carta 0 une llamada telefénic ng fo protegen.
a Su respuesta por escritotiene que estar
en formato legal correcto si desea que procesen su caso en la corte,
Es 'e haya un formulario que usted pueda usar para su respuesta.
Puede encontrar estos formularios de la corte y informacién
en el Centro de Ay yuda de fas Cortes de Califomia (warn sucorte.ca.gov) en la
biblioteca de leyes de su condado 0 en la corte que le quede mas cerca, Si no puede pagar la cuota de presentacién, al
que le dé un formulario de exencién de de cuotas. Sino presenta su respuesta a tiempo, puede perder el caso por incumplimiento y la corte le
podrd quitar su sueldo, dinero y bienes sin més adve! ia.
9s. Es recomendable que llame a un abogado inmediatamente. Sino conoce a un abogado, puede llamar a un servicio de
renin a sagas Sino puede ‘a un abogado, es posible que cumpla con los requisitos para ob! tener, Ss
de servicios
legates sin 5 de lucro, Puede encontrar estos grupos sin fines de lucro en el sitfo web de California Le
(www. lawhelpcalifornia.org), en ef Centro de de fas Cortes
de .8ucorte.ca.gov) o poniéndose en contacto con la corte o ef
colegio de abogados locales. AVISO: Por ley, fa corte tiene derecho
a rectamar las cuotasy los costos exentos por imponer un gravamen sobre
cualquier recuperacién de $10,000 6 mas de valor recibida mediante un acuerdo o una concesién arbitraje en un caso de derecho civil. Tiene que
gar al gravamen de fa corte antes de que la corte pueda desechar
el caso.
he name and address of the court ts;
(El nombre y direccién de fa corte es):
SANTA CLARA COUNTY SUPERIOR COURT
rine
CVoc
3084
rs 69
191 N. First Street
San Jose, CA 95113
The name, address, and telephone number of plaintiff's attomey, or plaintiff without an attorney, is:
(El nombre, la direccién y el numero de teléfono del abog: Jado del demandante, o de! demandante que no tiene abogado, es):
Michael G. Ackerman (64997) 408-261-5800 408-261-5900
Law Offices of Michael G. Ackerman
2391 The Alameda, Suite 100
Santa Clara, CA 95050
DATE:
APR 12 2017 Clerk, by WObnavve , Deputy
(Fecha) (Secreta io) (Adjunto)
(For proof of service of this summons, use Proof of Service of Summons (form POS-010),
(Para prueba de entrega de esta citatién use el formulario Proof of Service of Summons, (POS-010)).
NOTICE TO THE PERSON SERVED: You are server
[seay 1. as an individual defendant.
2. [__] as the person sued under the fictitious name of (specify):
Lhe rs 3. [£2] on behalf of (specify):
Ss tp
under: [] CCP 416.10 (corporation) (_] CCP 416.60 (minor)
NOE.Fos [_) cep 416.20 (defunct corporation)
([__] CCP 416.40 (association or partnership)
[__] CcP 416.70 (conservatee)
[] CCP 416.90 (authorized person)
[] other (specify):
4. [_] by personal delivery on (date): Page tof
“isles
Form Adoplad for Mandatory Use
Judicial Council of California SUMMONS Code
of Civil Procedure
$8 412,20, 485
‘SUM-100 (Rev, duly 1, 2009)
INSTRUCTIG. . ON HOW TO COMPLETE THE COVER __,EET CM-010
To Plaintiffs and Others Filing First Papers. If you are filing a first paper (for example, a complaint) in a civil case, you must
complete and file, along with your first paper, the Civif Case Cover Sheet contained on page 1. This information will be used to compile
statistics about the types and numbers of cases filed. You must complete items 1 through 6 on the sheet. In item 1, you must check
one box for the case type that best describes the case. If the case fits both a general and a more specific type of case listed in item 1,
check the more specific one. If the case has multiple causes of action, check the box that best indicates the primary cause of action.
To assist you in completing the sheet, examples of the cases that belong under each case type in item 1 are provided below. A cover
sheet must be filed only with your initial paper. Failure to file a cover sheet with the first paper filed in a civil case may subject a party, its
counsel, or both to sanctions under rules 2.30 and 3.220 of the California Rules of Court.
To Parties in Rule 3.740 Collections Cases. A “collections case” under rule 3.740 is defined as an action for recovery of money owed
in a sum stated to be certain that is not more than $25,000, exclusive of interest and attomey's fees, arising from a transaction in which
property, services, or money was acquired on credit. A collections case does not include an action seeking the following: (1) tort
damages, (2) punitive damages, (3) recovery of real property, (4) recovery of personal property, or (5) a prejudgment writ of attachment.
The identification of a case as a rule 3.740 collections case on this form means that it will be exempt from the general time-for-service
requirements and case management rules, unless a defendant files a responsive pleading. A rule 3.740 collections case will be subject
to the requirements for service and obtaining a judgment in rule 3.740.
To Parties in Complex Cases. In complex cases only, parties must also use the Civil Case Cover Sheet to designate whether the
case is complex. If a plaintiff believes the case is complex under rule 3.400 of the California Rules of Court, this must be indicated by
completing the appropriate boxes in items 1 and 2. If a plaintiff designates a case as complex, the cover sheet must be served with the
complaint on all parties to the action. A defendant may file and serve no later than the time of its first appearance 3 Joinder in the
plaintiff's designation, a counter-designation that the case is not complex, or, if the plaintiff has made no designation, a designation that
the case is complex.
CASE TYPES AND EXAMPLES
Auto Tort Contract Provisionally Complex Civil Litigation (Cal.
Auto (22)}—Personal Injury/Property Breach of Contract/Warranty (06) Rules of Court Rules 3.400-3,403)
Damage/Wrongful Death Breach of Rental/Lease Antitrust/Trade Regulation (03)
Uninsured Motorist (46) (if the
Preview
CUMMING & ASSOCIATES, APLC William R. Cumming (State Bar No. 200966) cumming@cummingandassociateslaw.com 3080 Bristol Street, Sixth Floor, Suite 630 Costa Mesa, CA 92626 Telephone: (714) 432-6494 Facsimile: (714) 202-3162 LAW OFFICES OF NANCY M. BATTEL Nancy M. Battel (State Bar No. 126548) nancy@battelaw.com 1101 Westwood Drive, Suite B San Jose, CA 95125 Telephone: 408-723-2946 Facsimile: 408-266-7238 10 Attorneys for Defendants Worldwide Ground Transportation Solutions, Inc. and James Brown 11 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA. 13 FOR THE COUNTY OF SANTA CLARA 14 15 PHILIP RESTIVO, Case No. 17CV308469 16 Plaintiff, Judge Mary E. Arand 17 Department 09 Vv. 18 WORLDWIDE GROUND WORLDWIDE GROUND TRANSPORTATION SOLUTIONS, 19 TRANSPORTATION SOLUTIONS, INC.; INC.’S TRIAL BRIEF JAMES BROWN, an individual; and DOES 1 20 through 5, inclusive, MSC Date: March 6, 2019 Time: 8:45 a.m. 21 Defendants. Dept.: 09 Judge: Mary E. Arand 22 Action Filed: April 12, 2017 23 Trial Date: March 11, 2019 24 25 26 27 28 TRIAL BRIEF TABLE OF CONTENTS Introduction The Relevant Facts A The Events Leading Up to Worldwide Purchasing Le Grande Affaire B Restivo Had A Discount Coupon to Use Limousine Services and Worldwide Honored His Requests to Ensure the Noncompete Stayed in Place. A Disagreement Arose Between Worldwide and Restivo Regarding the Language in Paragraph 4 of the Offer and Agreement to Buy, and Brown 10 Decided to Try and Resolve the Dispute Through Mediation.. 11 Worldwide and Restivo Reached an Agreement at The Mediation to 12 Amend the Language in The Addendum to the Offer & Buy Agreement to 13 Cap the Amount of Discount Limousine Services Worldwide Was 14 Obligated to Provide to Restivo 15 After the Mediation, Restivo Started to Complain that Worldwide Was 16 Not Honoring All of His Requests for Vehicles, and He Also Threatened 17 to Sue Both Worldwide and Brown for Breaching the Mediated 18 Settlement Agreement. 19 The Complaint Alleges Brown, In His Individual Capacity, And 20 Worldwide Breached the Terms of The Mediated Settlement Agreement 21 Dated September 17, 2015... 22 The Court’s Ruling On The Motion For Summary Judgment 23 A The Court Dismissed Brown from the Case. 24 B The Court Denied the Motion as To Worldwide. 25 Cc The Court’s Ruling Precluded Restivo From Pursuing A Declaratory 26 Relief Cause of Action, Which Includes Restivo Not Being Able to 27 Dispute the Enforceability of the Covenant Not to Compete 10 28 The Court was Critical of Restivo’s Damage Theory... 10 2 TRIAL BRIEF Worldwide Filed Motions in Limine That Should Eliminate or Substantially Reduce Restivo’s Damage Claims 10 The Defendants Served A Section 998 Offer For $25,000 And It Was Not Accepted, 10 Conclusion. 11 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 TRIAL BRIEF Worldwide Ground Transportation Solutions, Inc. (“Worldwide”) submits the following trial brief. 1 Introduction This lawsuit arises from a merger and acquisition transaction involving two limousines companies. Plaintiff Philip Restivo (“Restivo”) filed a complaint for breach of contract against James Brown (“Brown”) and Worldwide. The defendants filed a motion for summary judgment to dismiss Brown because he was not a party to the contract at issue, and Restivo was not able to establish he suffered damages. The court granted the motion and dismissed Brown, but denied the 10 motion as to Worldwide because the motion did not “conclusively negate” the damage element. 11 The court’s order regarding the motion for summary judgment made certain findings that are 12 binding at trial and present challenges Restivo likely cannot overcome in his effort to recover 13 damages. 14 2 The Relevant Facts 15 A The Events Leading Up to Worldwide Purchasing Le Grande Affair: 16 Brown has been in the transportation industry most of his professional life and knows the 17 industry well. In 2005, Brown started Worldwide, and today it is one of the larger transportation 18 companies in the Santa Clara area and offers a variety of transportation services. Its fleet of 19 vehicles includes luxury sedans and town cars, stretch limousines, and large charter buses. 20 Worldwide provides transportation services to the general public, commercial clients and 21 businesses, and offers vehicles for special events such as proms, wedding parties, and concerts. Its 22 diverse mix of vehicles and clients gives it the ability to thrive in a highly competitive market. 23 Restivo has known Brown for over 30 years. Restivo has also been in the transportation 24 industry most of his professional life and owned and operated transportation companies that were 25 similar to Worldwide. 26 In 2013, Restivo owned and operated Le Grande Affaire. The company had approximately 27 60 employees, 40 vehicles, and was grossing approximately $2.5 million per year. 28 4 TRIAL BRIEF Restivo wanted to cash out and sell Le Grande Affaire. He contacted Brown and asked if he wanted to buy Le Grande Affaire. Brown was not interested. Restivo approached Brown a few more times, and Brown warmed up to the idea. Eventually, the two agreed to terms and Brown decided to buy Le Grande Affaire. The two retained a business broker and the transaction involved Worldwide purchasing the assets of Le Grande Affaire. After Le Grande Affaire was paid in full, two primary obligations remained: (1) Restivo’s promise not to compete with Worldwide, and (2) Worldwide’s promise to provide discount limousine services to Restivo. The Covenant not to Compete was conditional and remained in place only if: (1) Worldwide remained current on its payments, which it did, and (2) Worldwide 10 adhered “to the terms set forth in paragraph 4.0 of the Addendum to Offer and Agreement to Buy, i dated 5/13/14,” which referenced providing discount limousine services to Restivo. (Offer and 12 Agreement to Buy, Ex. 1,41.) In other words, if Worldwide stopped providing discount 13 limousine services, the non-compete agreement could be terminated. 14 B. Restivo Had A Discount Coupon to Use Limousine Services and Worldwide 15 Honored His Requests to Ensure the Noncompete Stayed in Plac: 16 It would likely be helpful to explain how the discount limousine services worked. 17 The cost for a typical client to rent a vehicle from Worldwide has three components: (1) the hourly 18 rate for the vehicle, (2) the hourly rate for the driver of the vehicle, and (3) fuel for the vehicle. 19 The discounted hourly rate means Restivo only has to pay for the driver and fuel (i.e., costs two 20 and three), but not the standard hourly rate for the vehicle (i.e., cost one). In essence, Restivo has 21 a “discount coupon” that can be used when Restivo decides to use and pay Worldwide money for 22 renting a limousine. The discount coupon is no different than other discount coupons offered 23 through Kohl’s, restaurants, etc. 24 25 26 27 28 5 TRIAL BRIEF Cc A Disagreement Arose Between Worldwide and Restivo Regarding the Language in Paragraph 4 of the Offer and Agreement to Buy, and Brow! Decided to Try and Resolve the Dispute Through Mediation Approximately one year after Worldwide purchased Le Grande Affair, Brown recommended the parties participate in mediation. By this time, a dispute arose regarding the meaning of the certain phrases in paragraph 4 of the Offer and Agreement to Buy, which related to Worldwide providing discount limousine services. Worldwide believed it was important to honor its contractual obligation to provide discount limousine services because it was the right thing to do. Also, if Worldwide continued to provide discount limousine services, the non-compete 10 agreement would stay in place until June 10, 2021. Keeping Restivo out of the transportation 1 industry would mean one less competitor Worldwide had to deal with. 12 Worldwide and Restivo had different interpretations of the language in Paragraph 4 of the 13 Addendum to Offer & Agreement to Buy. The addendum states: 14 “4, Discount Limousine Service: For the duration of the Covenant Not to 15 Compete, Phillip Restivo may use vehicles of the Buyer for a price equal to the cost 16 of the chauffeur and fuel subject to reasonable amount of use as agreed between 17 Buyer and Mr. Restivo, to service Mr. Restivo’s personal use, friends, trades and 18 family useage.” 19 (Addendum to Offer & Agreement to Buy, Ex. 1, § 4) (emphasis added.) 20 Restivo testified at his deposition on October 4, 2018, regarding his understanding of the 21 relevant terms above. As for the definition of trades, Restivo defined it as being able to use 22 discount limousine services to pay off existing debts he owed before the agreement was signed, 23 and trades in the future after the agreement was signed. Brown had a narrower interpretation and 24 believed that Restivo should not include the use the limousines for any of future trades, but just to 25 clean up my past trades before the May 2014 agreement was signed. 26 The definition of trade became a sore topic because Restivo had repeatedly tried to profit 27 from trading limousine services and that was not part of the agreement. 28 6 TRIAL BRIEF The definition of “reasonable amount of use” also became a sore topic because Restivo was using vehicles more than anticipated. For example, between June 16, 2014, and January 3, 2017, Worldwide provided 83 different trips for Restivo, and the “discount” was approximately $40,000. Because of the growing frustration between Worldwide and Restivo, Brown recommended the parties ask a neutral third party for assistance and recommended Carlos Alarcon (“Alarcon”) as a mediator. D. Worldwide and Restivo Reached an Agreement at The Mediation to Amend the Language in The Addendum to the Offer & Buy Agreement to Cap the 9 Amount of Discount Limousine Services Worldwide Was Obligated to Provide 10 to Restivo il On September 17, 2015, the parties met with Alarcon and reached an agreement. The 12 parties agreed: (1) trades only related to debts that existed before the agreement was signed in May 13 2014, and (2) capped Restivo’s “discounted use” of the vehicles to $5,000 per month and the 14 discount amount went back to zero every four months. 15 The relevant language of the Mediated Settlement Agreement is the following: 16 “James Brown and Phil Restivo agree to accept and amend the Offer and Buy 17 Agreement dated 5/8/14 in these skeletal terms to further amend ‘Discount 18 Limousine Service’ clause and completed no later than 9/18/15 with thes 19 terms:” 20 (Mediated Settlement Agreement, ] 2, Ex. 2 (emphasis added).) 21 The amended terms to paragraph 4 of the Offer and Buy Agreement were as follows: 22 . “Vehicle trade use is good for any day or any time with the exception of Saturdays 23 when 8 passenger or smaller is okay but anything over 8 passenger must be booked 24 within 24 hours or less notification. 2 25 “The value of trade will be no more than $5,000 per month to include all classes of 26 usage. The $5,000 is accumulated and carried over monthly but disregarded every 27 four months, no more than $60,000 of value per year.” 28 || (Mediated Settlement Agreement, {| 2, Ex. 2.) 7 TRIAL BRIEF Alarcon agreed to prepare more formal agreement and send it to Brown and Restivo for review. Brown did not sign the document because he was not comfortable with the language. E. After the Mediation, Restivo Started to Complain that Worldwide Was Not Honoring All of His Requests for Vehicles, and He Also Threatened to Sue Both Worldwide and Brown for Breaching the Mediated Settlement Agreement Before the mediation, there was no dispute as to whether Worldwide was providing enough discount limousine services or failing to honor requests made by Restivo. After the mediation, Restivo raised these arguments, and that is when the relationship between Worldwide and Restivo 10 began to deteriorate. 11 Worldwide continued providing Restivo discounted limousine services under the 12 agreement. In fact, between September 17, 2015, and when Restivo stopped requesting vehicles, 13 Worldwide provided vehicles on 49 separate occasions, which represents 49% of all the times 14 Worldwide provided vehicles to date. 15 Restivo was not satisfied. He complained that Worldwide was not honoring all of his 16 requests for vehicles and that Worldwide’s excuses of a driver not being available or no vehicle 17 being available were a breach of the agreement. 18 Eventually, Restivo hired an attorney, Michael Ackerman, and threatened to file a lawsuit 19 against both Brown and Worldwide. Mr. Ackerman forwarded a proposed Release of Claims 20 demanding Restivo be paid $90,000 and Worldwide’s release of Restivo’s performance obligations 21 under the non-compete agreement. Brown was told that signing the Release of Claims would avoid 22 a lawsuit against both Worldwide and Brown in his individual capacity. Restivo’s demands and 23 the threat of litigation through his attorney was a high-pressure and bad faith litigation tactic to get 24 Restivo what he wanted. Both Brown and Worldwide refused to sign the Release of Claims and 25 Restivo filed the pending action. 26 27 28 8 TRIAL BRIEF F. The Complaint Alleges Brown, In His Individual Capacity, And Worldwide Breached the Terms of The Mediated Settlement Agreement Dated Septembe: 17, 2015 On April 12, 2017, Restivo filed a three-page complaint (not including exhibits) alleging that both Worldwide and Brown, in his individual capacity, breached the “mediated settlement agreement by refusing and failing to provide discount limousine services as promised under the original addendum to Offer and Agreement to Buy and the mediated settlement agreement.” (Complaint, ff 7, 8, Ex. 3.) In his prayer, Restivo requests (1) damages in the amount of $5,000.00 per month 10 commencing September 17, 2015, and (2) a declaration from the Court that the covenant not to 11 compete is terminated and of no further force and effect. (Complaint, Prayer, § 1, Ex. 3 (emphasis 12 added) [“For damages in the sum of $5,000.00 per month commencing September 17, 2015 and 13 continuing through the date of trial and for future damages in the sum of $5,000.00 per month from 14 and after the date of trial through June 15, 2021;”]; {2 [“For a declaration from the Court that the 15 covenant not to compete is now terminated and of no further force and effect;”].) 16 3. The Court’s Ruling on The Motion for Summary Judgment 17 The defendants filed a motion for summary judgment arguing James Brown was not a party 18 to the Mediated Settlement Agreement, and Restivo could not establish he suffered damages 19 because after the complaint was filed on April 12, 2017, he had not requested discounted limousine 20 services. 21 A The Court Dismissed Brown from the Case 22 The court found Brown was not a party to the Mediated Settlement Agreement that serves 23 as the basis for Restivo’s breach of contract cause of action. Therefore, Brown is no longer a party 24 to the case. (MSJ Ruling, 7:18-19, Ex. 4.) 25 B The Court Denied the Motion as To Worldwide 26 The motion for summary judgment argued Restivo could not establish the “damage” 27 element of the breach of contract cause of action. The court denied the motion because 28 TRIAL BRIEF “Transportation Solutions does not present evidence conclusively negating the element of damages.” (MSJ Ruling, 6:21-22, Ex. 4.) Cc. The Court’s Ruling Precluded Restivo From Pursuing A Declaratory Relief Cause of Action, Which Includes Restivo Not Being Able to Dispute the Enforceability of the Covenant Not to Compete On page two, footnote one, of the MSJ Ruling the court explained why Restivo cannot pursue a cause of action for declaratory relief. This ruling is significant because Restivo intended to request the court to determine whether the non-compete agreement was an enforceable agreement. 10 D. The Court was Critical of Restivo’s Damage Theory 11 The amount of damages Restivo seeks to recover in the case and the theory for recovering 12 damages have no merit in fact or law. The MSJ Ruling seemingly agrees by stating: “Contrary to 13 what Restivo alleges, he is not necessarily entitled to damages in the amount of the maximum 14 value of services he conceivably could have requested each month, namely $5,000 per month.” 15 (MSJ Ruling, 6:2-4, Exhibit 4.) 16 4 Worldwide Filed Motions in Limine That Should Eliminate or Substantially Reduce 17 Restiyo’s Damage Claim: 18 Worldwide filed motions in limine cite to Judge Arand’s ruling on the motion for summary 19 judgment in which she ruled Restivo had not suffered damages for breach of contract between the 20 time the complaint was filed on April 12, 2017 to Restivo’s deposition on October 4, 2018, 21 because he had not requested limousine services during this time. Restivo has not requested 22 limousine services after the deposition, so Judge Arand’s ruling should apply to the present. 23 5 The Defendants Served A Section 998 Offer For $25,000 And It Was Not Accepted 24 On March 25, 2018, the defendants served a Section 998 Offer that was not accepted. 25 26 27 28 10 TRIAL BRIEF 1]/6. Conclusion Worldwide will request the jury rule in its favor. Dated: March 10, 2019 CUMMING & ASSOCIATES, APLC By: William R. Cumming Attorneys for Defendants Worldwide Ground Transportation Solutions, Inc. and James Brown 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 TRIAL BRIEF EXHIBIT 1 ps sf Pig RTH OR onhere Mewadalsieans Busi “sitont Addendum to Offer &Agreement to Buy Poe terse 2 spay nd eau een! beh Business Le Grande Affaire Limousine Senvice Seller Restivo Enterprises Inc. Buyer. Worldwide Ground Transportation Solutions, Inc, Broker for Seller None Broker for Buyer None Date of Offer and Agreement to Buy 5/8/14 Date of this Addendum 5/13/14 : ng ape ep tte neat With fégard to the above reference: ‘st Purchase: Agreemen tthe Selleranc Eo te Fe aeeeenePe Buyer further agree: accounts receivable, 4. Excluded Assets: All equipment, fixtur eS,inventory, ovements and transferrable licenses, franchises, lease tights and impr vehicles. Exhibit “A” 2 ssets Included in Purchas:Se: Buyer and Seller to prepare lud in ed the sale, which shall list all assets and intellectual prope! rty inc s. within 48 hours after signing of t his Agreement by both partie 3. Consultin reement: Phillip Reslvo shall provide consulting services places as agreed to Buyer for 18 months after C losing at such times and. Mr. Resti vo consulting between Buyer and Mr. Restivo. Buyer shall pay aid as-follow: the total. amount:of-$200; 000-p seman monronen asoxcem fees asa 409-oontractorty wire tran: sfer through escr ow at Closing, a. $100,000 paid in cash by and encing on July 15, b. $5,868.50 paid on the 1 5M of each month comm hs regardless of the * 2044, and continuing fo the following 17 mont hours of consulting actually provided. 4, Discount Limousine Service: For the duration of the Covenant Not to” Buyer for a price equal Compete, Phillip Restivo may use vehicles of the nable amount of use to the cost of the chauffeur an d fuel subject to reaso Mr. Restivo's ce as agreed between Buyer and Mr. Restivo, to servi pérsonal use, friends, trades and famlly useage. sateen: “itiuttedav ewe SynSdotomen De Josttsy At Closin g Seller-shall dellveite:-BuyenalLopens iit customers for those customer orders and all deposi its received from orders. Seller shall pay customer deposits to escrow at Closing., Buyer a daitiqnapurchase Py shall:pay Seller 15% of the total of the orders as DEPOSITION through escrow at Closing. ee Ls o- 4 Pag pe POT Px:/] Buyeb initials ZS 000004 Le Grande Affaire ate aay este ante aS riper fearBG e tat ease 261 Sidd: Page 2 of 2 Seller is relyi ing on Buyer's commitment to 6. Non-Re fundable Depo1p! sit: . to begin closing the, complete the transaction ani d will take acti ions Business as of opening of esci row that may caus e lireparable damage te vent fo.enterinto.this. Ag en a ok seat bang say ‘af arid Agreementot Buy, ait graph agrees that the In ial Se escrow instructions have been 2.a,) shall become non-refundable onc e e this Ag! reement and signed by Buyer & Seller, Buyer may terminat Material Adverse Change or . receive his deposit back if buyer discovers a fraud of the Seller prior to Closing r has examined all of the Buyer’s Due Diligence: As of thi is date Buye ness that he requires and documents and information abou! t the Busi tory and walves any hereby approves that information as satisfac contingence for due diligence. Broker: - Greg Carpenter, Broker, has only acte d as a scivenerandhas: ve arty.in th trans: Rate ot che NoLIePEEs ene Pevienscrree : same. - All other terms and conditions remain the Worldwide Ground Seller: Restivo Enterprises Inc. Buye: Transportatior Solutions / 7) D < Abs CS—S ok >> Date By pmes Bro Wn; President Bats By hillip Restiv ‘0, Presider PREETI TE AER ae SSB t's earings Pe ad SARL BThea DB asada Tea wo WMNEA RD RS SEES ibn wy, Bite pL EERE REE RHOH uy % vy Page 2 of 2 000005 EXHIBIT 2 Mediated Settlement Agreement Party: James Brown V. Party: Phil Restivo This case having come on this date for a mediation conference and the parties and counsel having conferred with the mediator, it is hereby stipulated that pursuant to the signatures herein below, that this matter Is deemed settled pursuant to the following terms and conditions: 1,) James Brown shalll pay to the plaintiff the sum of §. 2 in accordance with the below stated terms as payment in full of all of its claims arising from the allegations described in the complaint. Payment terms: 1a,) Phil Restivo shall pay to the defendant the sum of eo in accordance with the below stated terms as payment in full of all of its claims arising from the allegations described in the complaint. Payment terms: 2.) James Brown and Phil Restivo agree to accept and.a1 id the: Off ind Buy, ment ee dated:5/8/14 in these skeletal _terms.to, furthel ui USI louse and completed.no! later than’09/18/15 with thése |) éhicle trade use Is good for any day or any time with.the exception of ( Saturdays when 8 passenger or smaller is okay but anything over 8 passenger must be booked within 24 hours or less notification” The value of trade will be no more than $5,000 per month to include all classes of usage. The $5,000 is accumulated and caitied over monthly but disregarded every four months, no more than $60,000 of value per yéar. The ve amendment has been proposed and accepted by both parties and consideration is embedded.as a result This amendment will be added as an addendum.to overall Offer and Buy contract where the version will be generated, after consultation by either or both attorneys for either party, depending-on the terms of the agreement with the knowledge that he/she or if will be barred from proceeding against the defendant in the future regardless of what might happen and agrees that after or if necessary, payment is made in full, to dismiss its Complaint with prejudice. Defendant(s) agree to dismiss any cross-complaints. Each party shall bear their own costs and attorneys’ fees. DEPOSITION EXHIBIT ~4-}8 2a.) The defendant agrees to accept said sum, or no sum, depending on the terms of the agreement with the knowledge that he/she or if will be barred from proceeding agairist the plaintiff in the future regardless of what might happen and agrees that after payment is made in full, fo dismiss its Complaint with prejudice. plaintiff agrees to dismiss any cross-complaints. Each party shall bear their own costs and attorneys’ feés. 3.) The parties agree that this settlement is intended tobe binding and . enforceable pursuant to §§ 1123 et seq. of the California Evidence Code without the execution of any further documents. Nonetheless, it ls agreed that Plaintift shall draft a mutual release and all parties agree to sign so long as the Release includes the skeletal terms set forth in this Stipulation. 4.) The parties agree that the release shall include a waiver of all unknown claims, as set forth in California Civil Code § 1542, which provides that, “A general release does not extend to claims which the creditor does not know or suspect to exist In his or her favor at the fime of executing fhe release, which if known by hin or her must have materlally affected his or her settlement with the debtor.” §.) Other provisions, i.e “confidentiality” (continued on back or attached sheets) If necessary): DATED: 09/17/15 Party: James Brown Party: Phil Restivo Neutral: Carlos J. Alarcon CCP § 464.6 If parties to pending litigation stipulate, in awriting signed by both parties outside the presence of the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the agreement. Initials Plaintiff. InitialsDefendant®) EXHIBIT 3 SUMMUNS SUM-100 (CITACION JUDICIAL) (slo FARA 30 DE Ch corre Ga, NOTICE TO DEFENDANT: WORLDWIDE GROUND (AVISO AL DEMANDADO): SOLUTIONS, INC.; TRANSPORTATION JAMES BROWN, an iL r Sew G “§ individual; and DOES 1 through 5, inclusive. 77 APRI2 P4271 YOU ARE BEING SUED BY PLAINTIFF: PHILIP RESTIVO rl if eo DEPUTY (LO ESTA DEMANDANDO EL DEMANDANTE): NoTicE! You have been sued. The court may decide against you without your being heard unless you respond within 30 days. Read the information You have 30 CALENDAR DAYS after this summons and legal papers are served on you to fila a written response at this court aiid have acopy ‘served on the plaintiff. A letter or phone call will not protect you. Your written response must be in proper legal form if you want the court to hear your case. There may be a court form that you can use for your response. You can find these court forms and more information at the California Courts Online Self-Help Center (www.courtinfo.ca.gov/setthelp), your county law library, or the courthouse nearest you. If you cannot pay the filing fee, ask the court clerk for a fee waiver form. If you do not file your response on time, you may lose the case by default, and your wages, money, and property’ may be taken without further warming from the court. There are other legal requirements. You may y want to call an attorney right away. If you do not know an attorney, you may want to call an attomey referral service. If you cannot afford an attome' /, you may be eligible for free legal services from a nonprofit legal services pI ram. You can locate these nonprofit groups at the Califomia Legal Services Web site (www.courtinfo.ca.gov/sel Jawhelpealifomia.org), the Call for iia Courts Online Self-Help Center }), or by contacting your local court or county bar association. NOTE: The court has. a ‘statutory lien for waived fees and costs on any settlement or arbitration award of $10,000 or more in a clvil case. The court's lien must be paid before the court will dismiss the case. JAVISO! Lo han demandado. Sino responde dentro de 30 dfas, la corte puede decidir en su contra sin escuchar su version. Lea la informacion a continuacién Tiene 30 DIAS DE CALENDARIO de:spués de que le entreguen esta citacién y papeles legales para presentar una respuesta por escrito enesta corte y hacer que se entregue unacopla al demandante. Una carta 0 une llamada telefénic ng fo protegen. a Su respuesta por escritotiene que estar en formato legal correcto si desea que procesen su caso en la corte, Es 'e haya un formulario que usted pueda usar para su respuesta. Puede encontrar estos formularios de la corte y informacién en el Centro de Ay yuda de fas Cortes de Califomia (warn sucorte.ca.gov) en la biblioteca de leyes de su condado 0 en la corte que le quede mas cerca, Si no puede pagar la cuota de presentacién, al que le dé un formulario de exencién de de cuotas. Sino presenta su respuesta a tiempo, puede perder el caso por incumplimiento y la corte le podrd quitar su sueldo, dinero y bienes sin més adve! ia. 9s. Es recomendable que llame a un abogado inmediatamente. Sino conoce a un abogado, puede llamar a un servicio de renin a sagas Sino puede ‘a un abogado, es posible que cumpla con los requisitos para ob! tener, Ss de servicios legates sin 5 de lucro, Puede encontrar estos grupos sin fines de lucro en el sitfo web de California Le (www. lawhelpcalifornia.org), en ef Centro de de fas Cortes de .8ucorte.ca.gov) o poniéndose en contacto con la corte o ef colegio de abogados locales. AVISO: Por ley, fa corte tiene derecho a rectamar las cuotasy los costos exentos por imponer un gravamen sobre cualquier recuperacién de $10,000 6 mas de valor recibida mediante un acuerdo o una concesién arbitraje en un caso de derecho civil. Tiene que gar al gravamen de fa corte antes de que la corte pueda desechar el caso. he name and address of the court ts; (El nombre y direccién de fa corte es): SANTA CLARA COUNTY SUPERIOR COURT rine CVoc 3084 rs 69 191 N. First Street San Jose, CA 95113 The name, address, and telephone number of plaintiff's attomey, or plaintiff without an attorney, is: (El nombre, la direccién y el numero de teléfono del abog: Jado del demandante, o de! demandante que no tiene abogado, es): Michael G. Ackerman (64997) 408-261-5800 408-261-5900 Law Offices of Michael G. Ackerman 2391 The Alameda, Suite 100 Santa Clara, CA 95050 DATE: APR 12 2017 Clerk, by WObnavve , Deputy (Fecha) (Secreta io) (Adjunto) (For proof of service of this summons, use Proof of Service of Summons (form POS-010), (Para prueba de entrega de esta citatién use el formulario Proof of Service of Summons, (POS-010)). NOTICE TO THE PERSON SERVED: You are server [seay 1. as an individual defendant. 2. [__] as the person sued under the fictitious name of (specify): Lhe rs 3. [£2] on behalf of (specify): Ss tp under: [] CCP 416.10 (corporation) (_] CCP 416.60 (minor) NOE.Fos [_) cep 416.20 (defunct corporation) ([__] CCP 416.40 (association or partnership) [__] CcP 416.70 (conservatee) [] CCP 416.90 (authorized person) [] other (specify): 4. [_] by personal delivery on (date): Page tof “isles Form Adoplad for Mandatory Use Judicial Council of California SUMMONS Code of Civil Procedure $8 412,20, 485 ‘SUM-100 (Rev, duly 1, 2009) INSTRUCTIG. . ON HOW TO COMPLETE THE COVER __,EET CM-010 To Plaintiffs and Others Filing First Papers. If you are filing a first paper (for example, a complaint) in a civil case, you must complete and file, along with your first paper, the Civif Case Cover Sheet contained on page 1. This information will be used to compile statistics about the types and numbers of cases filed. You must complete items 1 through 6 on the sheet. In item 1, you must check one box for the case type that best describes the case. If the case fits both a general and a more specific type of case listed in item 1, check the more specific one. If the case has multiple causes of action, check the box that best indicates the primary cause of action. To assist you in completing the sheet, examples of the cases that belong under each case type in item 1 are provided below. A cover sheet must be filed only with your initial paper. Failure to file a cover sheet with the first paper filed in a civil case may subject a party, its counsel, or both to sanctions under rules 2.30 and 3.220 of the California Rules of Court. To Parties in Rule 3.740 Collections Cases. A “collections case” under rule 3.740 is defined as an action for recovery of money owed in a sum stated to be certain that is not more than $25,000, exclusive of interest and attomey's fees, arising from a transaction in which property, services, or money was acquired on credit. A collections case does not include an action seeking the following: (1) tort damages, (2) punitive damages, (3) recovery of real property, (4) recovery of personal property, or (5) a prejudgment writ of attachment. The identification of a case as a rule 3.740 collections case on this form means that it will be exempt from the general time-for-service requirements and case management rules, unless a defendant files a responsive pleading. A rule 3.740 collections case will be subject to the requirements for service and obtaining a judgment in rule 3.740. To Parties in Complex Cases. In complex cases only, parties must also use the Civil Case Cover Sheet to designate whether the case is complex. If a plaintiff believes the case is complex under rule 3.400 of the California Rules of Court, this must be indicated by completing the appropriate boxes in items 1 and 2. If a plaintiff designates a case as complex, the cover sheet must be served with the complaint on all parties to the action. A defendant may file and serve no later than the time of its first appearance 3 Joinder in the plaintiff's designation, a counter-designation that the case is not complex, or, if the plaintiff has made no designation, a designation that the case is complex. CASE TYPES AND EXAMPLES Auto Tort Contract Provisionally Complex Civil Litigation (Cal. Auto (22)}—Personal Injury/Property Breach of Contract/Warranty (06) Rules of Court Rules 3.400-3,403) Damage/Wrongful Death Breach of Rental/Lease Antitrust/Trade Regulation (03) Uninsured Motorist (46) (if the